Citation Nr: 21002874 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-20 651 DATE: January 19, 2021 ORDER Entitlement to service connection for sleep apnea is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s sleep apnea was incurred during his active military service. CONCLUSION OF LAW The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to June 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified at a hearing before the undersigned. The Board notes, rating decisions of February 2016 and July 2016 also denied entitlement to service connection for sleep apnea. In November 2016, during the appeal period following these decisions, a June 2016 etiology opinion from the Veteran’s VA primary care physician was added to the claims file. As this represents new and material evidence, the February 2016 and July 2016 rating decisions did not become final. A discussion of reopening the issue of service connection for sleep apnea is not warranted. Entitlement to service connection for sleep apnea Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). The Veteran seeks service connection for sleep apnea. A VA sleep study diagnosed obstructive sleep apnea in January 2016. Service treatment records do not include a diagnosis of sleep apnea or reports of snoring or other symptoms associated with sleep apnea. In November 2016, the Veteran submitted a statement from W. N., his friend and neighbor in 2001. W. N. recalled, on occasion, he spent the night at the Veteran’s home. There, he witnessed the Veteran snoring loudly, choking in his sleep, and waking up gasping for air. The Veteran also submitted a statement from W. R. B., who was assigned to duty at Fort Hamilton with the Veteran from June 1989 to May 1992. W. R.B. recalled staying at the Veteran’s home and observing him snoring loudly. He described the Veteran as waking up coughing, choking, and trying to catch his breath. As laypeople, W. N. and W. R. B. are competent to report the Veteran’s observable behavior. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In June 2016, Dr. M. D., the Veteran’s VA primary care physician, opined the current sleep apnea condition was more likely than not present during and causally related to the Veteran’s active duty service. Dr. M. D. reported that he reviewed the VA medical records and the supporting statements of W. N. and W. R. B. He did not review the service treatment records. Dr. M. D. observed the lay statements strongly indicated symptoms of sleep apnea were present during the Veteran’s active service. As a physician, Dr. M. D. is competent to provide an etiology opinion. Although he did not review the service treatment records, he considered other competent evidence of the Veteran’s symptoms during his active service. This opinion is entitled to significant weight. See Wood, supra. (Continued on the next page)   In March 2017, a VA sleep apnea examination was provided to evaluate the claim. The examiner confirmed the Veteran’s January 2016 diagnosis of sleep apnea. He opined the condition was less likely than not caused by or incurred during active service. In support of this opinion, he noted the diagnosis was made 14 years after the Veteran separated from active service. He observed obesity was “the [number one] risk factor for sleep apnea” and, after active service, the Veteran had become obese. The examiner dismissed the statements from W. N. and W. R. B. and observed “sleep disordered breathing” was not documented in the service treatment records. As a physician, the VA examiner is competent to provide an etiology opinion. Although he dismissed competent lay statements without a full explanation for doing so, his opinion is entitled to some weight. Id. Resolving any reasonable doubt in favor of the Veteran, the Board finds it is at least as likely as not the Veteran’s sleep apnea was onset during his active duty service. Entitlement to service connection for sleep apnea is warranted. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see also Gilbert, supra. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.